Are parties protected from retroactive action when a law allowing something is declared unconstitutional and other existing laws conflict?

RE:CA Prop22 and AB-5 law on Independent Contractor status requirements.

I believe this is an ex post facto law question.

I have a very specific scenario in mind here, so please read carefully. In California, Proposition 22 (2020) is before the CA Supreme Court and could soon be declared unconstitutional with respect to the state constitution (likely only parts will be overturned.)

Prop22 allowed gig workers to be declared Independent Contractors as a matter of law, rendering AB-5 and other state employment laws moot on the matter.

Under AB-5, there was a strong basis that gig workers, particularly rideshare and delivery, are employees. Specifically, the ABC test was allegedly failing the B test - is the work being performed substantially different from the normal business of the company?

If Prop 22 were ruled unconstitutional under CA law (not federal), could companies that declared workers as ICs under this law, be held retroactively responsible/liable for violating the other existing employment laws, ie., misclassifying employees as ICs for the period that Prop22 was in effect? Could companies be held liable for actions that were allegedly illegal under other existing laws which were rendered moot during that period, or would they be protected because Prop22 was the law of the land at that time?

This is not to debate whether workers were ICs or employees. I simply want to know whether these companies would be protected from any consequences despite workers having been allegedly misclassified under other existing laws, while Prop22 certified them as ICs and was subsequently declared unconstitutional by the state supreme court.

It seems to me that this is a special circumstance of ex post facto law. I believe that AB-5 would apply before Prop22 went into effect on Dec 17 2020, and would again apply after the effective date of any declaration of unconstitutionality.

I also believe that Prop22 would still protect companies from being cited for AB-5 violations during the period that Prop22 was effective. Am I correct on this, or could state agencies pursue cases of misclassification alleged during this period? What about civil cases brought by workers? Would they be thrown out for the same reasons?

I am not an attorney, just a very strong interest in this.

1 Answer 1


It’s not an ex-post facto issue

If the court finds the law unconstitutional, it was always unconstitutional and void from the instant it came into effect. Under the doctrine that ignorance of the law is not an excuse, those hypothetical employers should have always known what the court would decide. While it may be a harsh outcome, its not ex-post facto.

This is, in fact, the way all statute law works: the legislature passes a statute, everyone affected has to try to work out what it means and apply it in the real world. Sometimes the statute is unclear. Always it’s subject to interpretation. Things can go on for years with everyone thinking the statute means “X”. Then someone goes to court and the court decides that, no, the statute means “Y” (or is unconstitutional). It doesn’t nowmean “Y”, it always meant “Y”. Then 12 months after that, the appeals court reverses, so now it always mean “X”. Then 18 months after that, the next appeal says, no, it means “Z”. And then, a generation later, a similar case comes along, and the top court says, sorry, our bad, it was always “X”.

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